No. 90-305 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent,

-vROBERT E. HOWARD, Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Richland, The Honorable Dale Cox, Judge presiding.

COUNSEL OF RECORD: For Appellant: J. DouglasAlexander, Sidney, Montana For Respondent: Marc Racicot,Attorney General;JoeThaggard,Asst. Atty. General; Helena, Montana Mike Weber, Richland County Attorney; Phillip N. Carter, Deputy County Attorney; Sidney, Montana
Submitted on Briefs: January 17, 1991 Decided: March 4, 1991 Filed:

ClerkJustice Fred J. Weber delivered the Opinion of the Court.

In the District Court for the Seventh ~udicialDistrict, Richland County, defendant Robert Howard, was convicted of two counts of felony sexual assault pursuant to 9 45-5-502(3), MCA. Defendant appeals. We affirm. The sole issue for our consideration is: id the District Court err in finding the two child witnesses competent to testify under Rule 601,M.R.Evid.? Mrs. M1stwin five-year-old daughters, C.B. and K.B., lived withMrs. M andherhusband. ~ccasionally, theM'shad defendant's wife, Teresa, babysit the twins. In May 1989, C.B. and K.B. told Mr. M that defendant had ''licked their butts1' and showed them his "big thing1'. Mr. M informed David Schettine,a Police Detective, about what the girls had said. Mr. Schettine then interviewed each girl separately. Both girls said that defendant "licked theirbuttn in thepresence of the other twin. Theyboth indicated by pointing thatwhat they really meant by were their vaginas. The girls testified that the assaults took place at Teresa's home while she was babysitting. Each girl testified that Teresa was not at home when the assaults took place. Did the District Court err in finding the two child witnesses competent to testify under Rule 601,M.R.Evid.? Defendant maintains the District Court erred in allowing the testimony of C.B. and K.B. because the girls were not competent totestify. He contends that the girls were "incapable" of telling the truth and are therefore incompetent under Rule 601(b), M.R.Evid. The State maintains that both girls were proven to be competentprior to testifying. The Statepoints out that after the voir dire of C.B., and upon the State's motion, the court found C.B. competent to testify. Defendant failed to object to C.B. Is competenceor to voir direher at thispoint. C.B. then testified. Only after the State's redirect examination of C.B. did defendant

move the court to reconsider C.B.'s competency to testify. The court denied that motion. Similarly,before K.B. was declared a competent witness, the court invited the defense to voir dire K.B. Thedefense responded with, I1Ithink I'd prefer to just cross-examine once." The court then found K.B. competent to testify. After the re-direct examination of K.B., the defensemoved the court to reconsider its finding of K.B.'s competence. Themotion was denied. The State further contends that both girls were 'lcapablell of testifying under Rule 601(b), M.R.Evid. It urges that in determining whether the District Court abused its discretion it must be determinedthatK.B. and C.B. possessed sufficient capacity of expression and appreciation of the duty to tell the truth to qualify them as competentwitnesses. The State contendsboth girls were able to vividly recall the assault and relate significant details of what happened.Rule 601(b)provides: Disqualification of witnesses. A person isdisqualified to be a witness if the court finds that (1) the witness is incapable of expressing himself concerning thematter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or (2) the witness is incapable of understanding the duty of a witness to tell the truth. During the settling of instructions, the District Court addressed the pending motions by the defense to reconsider the qualificationsof the two girls as to their competency. The court stated: The Court has reviewed a number of Supreme Court cases, Statevs. Rogers, Statevs. DBS,Statevs. Phelps, Statevs. Elier, and others. The Courthas also reviewed the testimony and notes that the criteria is set forth inRule 601of theMontana Rules of Evidence. And for disqualification of a witness, the person must be 

## -- the witness must be incapableof expressing herself concerning thematter so as to be understood by the judge and jury, directly or through interpretation by one who can understand him. I found both girls were capableof expressingthemselves. And the second, a witness is incapable of understanding the duty of the witness to tell the truth. And the State did lay a foundation as to both girls showing that they knew it to be wrong to lie. The cross-examination brought out certain inconsistencies of each witness. Based upon my reading of the Supreme Court cases and my understanding of the RulesofEvidence, those inconsistenciesare for the jury totake into consideration indeterminingthecredibility of each witness. Therefore,themotion forreconsiderationisdenied. A determination of competency is within the sound discretion of the District Court. Statev. Newrnan (1990), 242 Mont. 315, 790 P.2d 971. Defendanthas failed to demonstrate the District Court has abused that discretion. We hold that the District Court correctly found the two childwitnesses competent to testify under Rule 601, M.R.Evid. Affirmed.

" Chief Justice